Trump needs to roll back criminal penalties for noncriminal conduct - RONALD LAMPARD

BOBOJAY November 26, 2016 0

Unauthorized use of Smokey the Bear's image could land an offender in prison. So can unauthorized use of the slogan "Give a Hoot, Don't Pollute." While one may think the government would never initiate a criminal prosecution for either of these two "criminal" acts, there have been numerous examples of individuals being prosecuted under federal law for conduct that should not be criminalized.

For example, Eddie Anderson of Idaho took his son camping in the wilderness, searching for arrowheads. They didn't find any, but they were searching on federal land, which is prohibited by the Archaeological Resources Protection Act of 1979. They both faced a felony charge, punishable by up to two years' imprisonment before they pleaded guilty to a misdemeanor and were fined $1,500 each and placed on probation for a year.

Some of these criminal offenses are contained in federal statutes, which prescribe an estimated 4,500 crimes, according to a study by retired Louisiana State University law professor John Baker. To help put that number in perspective, the Constitution mentions three federal crimes by citizens: treason, piracy and counterfeiting. Around the turn of the 20th century, the number of federal criminal statutes was as low as dozens. Essentially, over the last hundred years, federal statutes carrying criminal penalties have grown at an exponential rate.

The number of criminal statutes — laws passed by both Houses of Congress and signed into law by the president — is dwarfed by the number of regulations carrying criminal penalties. The total number of these regulations is difficult to count, however, it is estimated to number roughly 300,000. Perhaps most disturbingly, these "criminal regulations" are written by unelected bureaucrats, yet still carry the force of law.

In order to stem the explosion of criminal regulations, President-elect Trump can begin the process of removing said regulations. Trump says in his first 100 days he wants to see two regulations removed for every one regulation created.

Since these regulations were largely written by unelected bureaucrats who work for the executive branch, the Trump administration could start immediately. Though many regulations cannot be repealed with the stroke of a pen, unlike executive orders, the Trump administration has a unique opportunity to work with Congress to start rolling back the administrative state.

Whereas statutes are written by elected officials, who are accountable to constituents, these criminal regulations are written by individuals who need not fear the wrath of constituents. Moreover, these criminal regulations stifle liberty. All a federal agency has to do is advise a regulated person or entity that the mere possibility of facing criminal prosecution exists for failure to follow an agency regulation, and the said person or entity is likely to comply with the directive without questioning the agency's authority.

Since most criminal regulations do not prohibit morally indefensible conduct, individuals can become criminals despite their conduct not being criminal in nature. Certainly, some of these regulations ought to deter certain conduct. However, this can be accomplished by making the penalty civil or administrative.

In order to address the roughly 4,500 federal criminal statutes, Trump will have to work with Congress in order to repeal statutes his administration deems to unnecessarily carry criminal penalties. While there will inevitably be some disagreement between Congress and the Trump administration, their common goal should be to repeal criminal statutes that punish conduct that is not morally indefensible.

As John Malcolm at the Heritage Foundation said, "There is a unique stigma that goes with being branded a criminal. Not only can you lose your liberty and certain civil rights, but you lose your reputation — an intangible yet invaluable commodity … that once damaged can be nearly impossible to repair. In addition to standard penalties … a series of burdensome collateral consequences that are often imposed by … federal laws can follow an individual for life."

The federal government should proscribe criminal penalties only for conduct that is inherently wrong in order to protect public safety. Criminal statutes serve a crucial purpose in preserving law and order and establishing the rule of law. However, preserving law and order need not come at the expense of criminalizing conduct such as nursing a woodpecker back to health or shipping undersized lobsters in plastic bags instead of cardboard boxes.

Trump has a tremendous opportunity to reduce the number of actions criminalized by federal law. Such action would serve all Americans well and would be a great victory for both law and order and individual liberty.

Ronald Lampard is director of the Criminal Justice Reform Task Force at the American Legislative Exchange Council. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.

Send us a news tip, Advert/ Promotion enquiries, General enquiries, Complain about a story, Submit an opinion, Submit a photo, audio or video etc. Send mail to bobojaytv @gmail.com